USACM Comments on DMCA Section 1201

By Renee Dopplick, ACM Director of Public Policy
March 8, 2016

USACM submitted comments to the U.S. Copyright Office for its study on the effectiveness of the Digital Millennium Copyright Act (DMCA) and the permanent and temporary exemptions allowing lawful circumvention of technological measures of copyrighted works. The U.S. Copyright Office will use the public input to inform its report to Congress and its recommendations on possible legislative, regulatory and policy reforms.

The DMCA and its exemptions have important implications for lawful, noninfringing uses of copyrighted works, such as socially beneficial reverse engineering, encryption research, computer privacy and security research, accessibility for people with disabilities, and educational activities.

The DMCA forbids the circumvention of technological measures controlling access to copyrighted content, subject to some limited exemptions. Eight permanent exemptions allow for circumvention for certain permissible activities, such as security testing, reverse engineering, data privacy protections, controlling Internet access by minors, education, law enforcement, some uses of analog devices, and ephemeral recordings. As required by Section 1201 of the DMCA, the Register of Copyrights conducts triennial rulemakings to consider temporary exemptions where the prohibition would adversely affect noninfringing uses during the upcoming 3-year period.

Given the lack of adequate protections of the permanent exemptions, USACM has supported and helped achieve temporary exemptions for certain types of noninfringing computing-related activities. USACM’s input during the triennial rulemakings has helped show that the permanent exemptions provide inadequate civil and criminal liability protections for computing professionals engaged in noninfringing uses that benefit consumers, educators, and the public.

In the most recent triennial rulemaking, USACM’s comments helped contribute to the granting of a special exemption for security research on voting machines and a security research exemption for computing programs used to operate consumer-oriented devices and machines, land vehicles, and medical devices. The voting exemption went into effective immediately in October 2015. The security research exemption, to become effective in October 2016, excludes research into systems such as nuclear power plants and air traffic control systems. The security research “must not put members of the public at risk” and needs to be primarily for the purpose of promoting “security or safety.” Research must be conducted “in a controlled setting designed to avoid harm to individuals or the public.” In cases of medical devices, the research cannot be on medical devices “that are being used, or could be used, by patients” or for “patient care.”

Highlights from USACM’s comments for the Section 1201 study:

• Presumptive Renewals
USACM urges the Copyright Office to favor presumptive renewals of triennial exemptions in cases where there is no credible opposition. This will help improve the efficiency and effectiveness of the triennial rulemaking process. The current requirements to provide the factual and legal evidence anew each time can result in significant inefficiencies and duplication of effort by all parties and the Copyright Office. Shifting the burden to require interested parties to show why the renewal should not be granted could help focus the examination on any significant changes, such as in the marketplace or in technological advancements. Further, the more efficient processes of presumptive renewals could allow the Copyright Office to more effectively examine petitions for new exemptions.

• Treatment of Non-Copyright Policy Issues
USACM urges the Copyright Office to clarify that non-copyright policy issues are outside the scope of Section 1201. This includes privacy and security measures used for non-copyright purposes, reverse engineering, security and privacy research, and other research and development activities. These activities should not require exemptions because they do not constitute infringement. If the Copyright Office concludes that they are within the scope of Section 1201, they should be protected as permissible activities under expanded permanent exemptions.

• Permanent Exemptions
To the extent that the Copyright Office finds noninfringing activities as within the scope of Section 1201, USACM would favor statutory amendments that provide more effective permanent exemptions to enable socially beneficial reverse engineering, encryption research, computer privacy and security research, accessibility for people with disabilities, and educational activities. This would ensure that Section 1201 targets only those circumventions that enable copyright infringement.

Read the full-text of USACM’s comments.

The comments were developed by the ACM U.S. Public Policy Council (USACM), which serves as the focal point for ACM’s interaction with the U.S. government in all matters of U.S. public policy related to information technology. USACM is comprised of computer scientists, educators, researchers, and other technology professionals. USACM members have experience with privacy, security, data mining, and machine learning algorithms that are used to extract patterns and understanding from large datasets.